The Broad Implications of the Obama Administration's Narrow Prop 8 Brief: Part 3

This piece is part of a three-part series examining the Obama administration's Supreme Court brief arguing that California's Proposition 8 violates the U.S. Constitution's equal protection provisions. You can read Part 1 here and Part 2 here.

Last week, the Obama administration filed a Supreme Court brief challenging the constitutionality of Prop 8 that included the so-called 'eight-state solution." California's marriage equality ban, the brief argued, violates equal protection because California extends all of the rights and responsibilities of marriage to same-sex couples while withholding only the designation of 'marriage' to them.

As the brief pointed out, seven other states--Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island--have a similar legal scheme when it comes to marriage-like protections for same-sex couples. If California's marriage equality ban is unconstitutional, the brief implicitly argued, then these other seven states' bans likely are as well.

The end of civil unions?

Even amongst supporters of marriage equality, there is hardly a uniformity of opinion as to whether the eight-state solution would be a bold move forward or a Pyrrhic victory that could set back legal protections to for same-sex couples in other states. Some LGBT advocates worry that a Supreme Court ruling invalidating marriage-like civil union or domestic partnership laws as unconstitutional would dissuade legislators in more conservative states from supporting such laws for fear that they would be challenged in court and eventually lead to full marriage equality.

This fear is understandable, but probably less important than it initially appears. First off, as I've written before, civil union and domestic partnership laws could very well be subject to constitutional challenge pending a Supreme Court decision on the constitutionality of the Defense of Marriage Act (DOMA). As it stands right now, married same-sex couples are treated by the federal government the same as same-sex couples in civil unions or domestic partnerships--that is, none of these couples are provided any federal benefits. If DOMA is invalidated, though, civil union and domestic partnership laws would only provide couples with state benefits and not federal benefits, making them ripe for equal protection challenges under state or federal law.

Second, and perhaps more significantly, the pace of the marriage equality movement has accelerated so quickly that every single one of the states with marriage-like laws is currently considering a shift to full marriage equality. Legislative efforts are underway this year in Delaware, New Jersey, Illinois and Rhode Island. Lawsuits are pending in Hawaii, Nevada, New Jersey and Illinois. Oregon will likely consider a ballot initiative next year that would put marriage equality to a popular vote in the 2014 election.

Just as importantly, the attorney generals of Delaware, Illinois and Oregon all signed on to a friend of the court brief in the Prop 8 case arguing that the law "codifies the second-class status--for its own sake--of gays, lesbians, and their families" and writing that "[u]nder any standard of Equal Protection analysis, it cannot survive review." (The attorney general of California filed her own brief arguing the law violates the Fourteenth Amendment.) Although the brief signed by Delaware, Illinois and Oregon does not explicitly make the claim that these states' civil unions or domestic partnership laws are unconstitutional, the legal argument the brief makes against California's laws could easily apply to the other states as well.

In several of the states that offer marriage-like legal protections, the path from civil unions or domestic partnerships to marriage equality has been especially speedy. Civil unions were first offered in Illinois and Rhode Island in 2011; in Hawaii, they were first offered in 2012. If anything, the introduction of these not-quite-marriage laws has only accelerated the push for full marriage equality by pointing out the ways in which anything less than equal marriage rights puts couples at risk of discrimination and prejudice.

To put it simply, it is becoming more and more evident that the marriage equality movement has moved past an inflection point where civil unions and domestic partnerships simply do not cut it anymore. A Supreme Court decision recognizing this would be more likely to help than hinder equality advocates--even in the most conservative states--by demonstrating that the separate but equal legal regimes in states like California and Nevada and Rhode Island distract from the real issue.

Same-sex couples should be treated equally when it comes to adoption, parenting rights and, yes, marriage. Civil unions and domestic partnerships were an important stop-gap measure that helped rectify (but only partially) the invidious discrimination same-sex couples faced. The time for such partial fixes has ended. As a nation, we are ready to debate full equality for same-sex couples--in fact, we have already been doing so for years. Solicitor General Donald Verrilli, Jr.'s Supreme Court brief demonstrates that President Obama understands the nation has reached this point. Through its seemingly narrow legal argument, the administration's brief lays out a nuanced, strategic framework that could lead to nationwide marriage equality within the next decade.